Three-Thousand and Zero
What in the world do I mean with a blog article titled “Three-Thousand and Zero”?
The simple answer is that they’re numbers.
But you knew that.
In 2006 or 2007, like me, the public defenders of a juvenile justice court in Miami-Dade, Florida, got tired of seeing all their children brought to court in shackles. They started running motions to have them unshackled.
Today, more than 95 percent of our child clients appear without chains and shackles before all four juvenile judges. With more than 3,000 detained children having appeared in court since our first motion, we have had no incidents of a child injuring or attempting to injure anyone in court, and no detained child has escaped from the courtroom. (Carlos Martinez, “Children in Chains: Why are Children in Florida Treated as Enemy Combatants?” (May-August 2007) National Legal Aid & Defender Association, vol. 29, no. 1, p. 10.)
Three-thousand unshackled children. (Unshackled! My G*d! What is the world coming to?!) Zero incidents of injury, attempted injury or escape.
California, according to the California Supreme Court and numerous judges who have read and accept their duty to uphold the law,
held that minors cannot be shackled in any juvenile court proceedings without an individualized showing of need, the same as in jury trials, even though no jurors are present in juvenile court. (James R. Brandlin, “Safety First” (Date Unknown) The Daily Journal, p. 7.)
But Fresno loves nothing if it doesn’t love living in and endorsing a police state. So in Fresno, California, shackles are de rigueur.
What I want to add, though, is this: Fresno’s juvenile court claims that they are not violating the law against shackling because they are not shackling as a matter of policy. Any Fresno juvenile court judge making that claim is intellectually dishonest. Deputies have testified under oath that minors were shackled because it was policy. Deputies have stated off-the-record that it is policy that drives the shackling.
No amount of going back after the fact to find out that the child told another child — or even an adult — to “fuck off,” or that he stuffed toilet paper into his toilet until it overflowed, or that he banged on the door of his cell because he was bored stiff, is going to change that.
By the way, I think the fact that I “win” about 50% or more — two out of three since yesterday — motions that I bring to have children I represent unshackled shows that they are being indiscriminately shackled. Most of these “wins” occur without argument: I make a challenge, the completely irrational procedure allowing deputies to go look for a reason is implemented and upon the deputies’ return, they state “The Sheriff’s Department will not object to the minor being unshackled.”
Boom! The shackles — which clearly should never have been placed on the child to begin with — come off.
And something else that needs to be understood is this: the courts do not have to earn respect like most other entities or people do; the court has armed officers to enforce their power to lock people up for “dissing” them, for one thing. But beyond that, they are duly-constituted courts of law under our system of government.
One thing courts can do, however, is to lose respect, when they forget that they are duly-constituted courts of law under our system of government. Just because the Sheriff’s Department wants to do something does not make it legal.
And I know one way they the courts can lose respect. Or, rather, I’ve heard the California Supreme Court say one of the ways it can be done. The California Supreme Court — so please don’t shoot the messenger here –notes one difficulty for courts is:
the disrespect for the entire judicial system…incident to the unjustifiable use of physical restraints…. (People v. Duran (1976) 16 Cal.3d 282, 291 [127 Cal.Rptr. 618].)
Moreover, the Fresno juvenile justice court judges who approve shackling for some children on the basis of the Sheriff’s deputies coming back — after being unable to find any better reason for shackling children — to run through the list of sins of those children while in custody in their pods is — well, I already said it: an exhibition of intellectual dishonesty.
[N]o child should be brought into the courtroom in shackles except under extraordinary circumstances backed by evidence. (Brian D. Gallagher and John C. Lore III, “Shackling Children in Juvenile Court: The Growing Debate, Recent Trends and the Way to Protect Everyone’s Interest” (2008) 12 U.C. Davis J. Juv. L. & Pol’y 453, 455.)
“But that’s not the law!” I can hear these intellectually-dishonest judges shouting already. “That’s just some namby-pamby touchy-feeling liberal writing some silly law review article!”
Well, how’s this for some law?
[T]he use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1355-1356 [59 Cal.Rptr.3d 363], quoting the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 344 [90 S.Ct. 1057, 25 L.Ed.2d 353].)
Or maybe this?
[N]o California State court has endorsed the use of physical restraints based solely on the defendants’ status in custody, the lack of courtroom security personnel, or the inadequacy of the court facilities. (Tiffany A., supra, 150 Cal.App.4th at 1358.)
What about this?
While we are sympathetic to the obligations and responsibility our conclusion may impose upon the juvenile delinquency court, the Sheriff’s Department and the People, those pale in comparison to the values we uphold. (Tiffany A., supra, 150 Cal.App.4th at 1362, emphasis added.)
One last one, for now,
Although the Duran opinion was written in the context of a jury trial it has application to other proceedings as well. Respect for the dignity of the individual and the court are values to be preserved whether or not a jury is present. (Solomon v. Superior Court of Los Angeles County (1981) 122 Cal.App.3d 532, 536 [ 177 Cal.Rptr. 1].)
In the Duran case, by the way, the two defendants were in a courtroom where there was only one bailiff. It was an adult court, so there was access to the outside. The defendants had been charged with armed robbery.
The Tiffany A. case involved minors who had access to the outside and, if they could just get loose from restraints and away from a deputy, they could escape. Nevertheless, Tiffany A. found that shackling is “anti-therapeutic for juveniles [and] antithetical to the rehabilitative aims of the juvenile justice system.” (Tiffany A., supra, 150 Cal.App.4th at 1354, fn.7.)
Fresno’s judges seem to be unconcerned with the use of shackles in juvenile court. The deputies want them. There’s no one there to see inside the locked courtroom (except the attorneys, court personnel, families of the kids and possibly “victims” accompanied by their court-appointed hand-holders). But,
[w]hile a primary concern regarding the use of physical restraints is the resultant prejudice if they are viewed by the jury, that is not the only reason for the limitation of their use. Also of concern is the potential unsettling effect on the defendant and therefore on his ability to present a defense, and ” ‘the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand.’ ” … As we have noted, the…rule of ‘evident necessity’ serves not merely to insulate the jury from prejudice, but to maintain the composure and dignity of the individual accused, and to preserve respect for the judicial system as a whole; these are paramount values to be preserved irrespective of whether a jury is present during the proceeding. (In re Deshaun M. (2007) 148 Cal.App.4th 1384, 1387 [56 Cal.Rptr.3d 627], at times quoting People v. Fierro (1991) 1 Cal.4th 173 [3 Cal.Rptr.2d 426].], emphasis added.)
When the court does not know why a child has been brought to court shackled, then, at least for that period of time, these paramount values are being ignored, the court sacrifices its dignity and the only respect it gets is that which it can force at the barrel of a deputy’s gun or threat of incarceration.
I’m just sayin’.